Ewha Law School

Jungwoo Kang

Abortion is illegal in South Korea. Its Criminal Act strictly bans abortion according to Articles 269 and 270 of the Act. A woman who procures her own miscarriage through the use of drugs or other means shall be punished by imprisonment for not more than one year or by a fine not exceeding two million won (paragraph 1 of the Article 269). A person who procures the miscarriage of a woman upon her request or with her consent can be punished in the same way (paragraph 2). The special circumstances in which women can legally get abortions are listed in the Article 14 of the Mother and Child Health Act. These are when the mother’s health is in serious danger, or in cases of rape, incest or severe hereditary disorders. The list is however, very restrictive and abortion can be never legal after the first 24 weeks of pregnancy. Thus, a judicial review case was filed in 2010, arguing that the Criminal law which criminalizes abortions infringes women’s right to self-determination.

In deciding whether paragraph 1 of the Article 269 infringes pregnant women’s right to self-determination, the Constitutional Court applied the proportionality test which is consisted of four parts; (1) there must be a legitimate aim for a measure, (2) the measure must be suitable to achieve the aim, (3) the measure must be necessary to achieve the aim, that there cannot be any less onerous way of doing it, (4) the measure must be reasonable, considering the competing interests of the public and the claimant.

Regarding the 1st criterion, court found the purpose of the legislation is to protect life of fetus, and it is legitimate. The 2nd criterion is also met as criminalising abortion is a suitable and effective way to uphold the purpose of the law. However, regarding the last two criteria, the judges were split into two groups; 5 to uphold the constitutionality of the law and 4 to deny that.

First, the former found that the right to life is a natural right, and it is so fundamental that it functions as the premises for all rights listed in the Constitution. Although a fetus must rely on the mother for maintenance of the life, it has a separate life and there is a huge possibility that it might become a human being, a fetus should be granted a right to life. If abortion is not criminalised, it will become more prevalent than it is now, and it will be difficult to achieve the legislative purpose of the abortion clauss. In addition, other means like education about contraception are not enough to be an effective means of preventing illegal abortion. Not all abortions are banned as it is allowed in exceptional circumstances that are listed in the Mother and Child Health Act. Thus, the abortion clause does not breach the third and fourth criteria of the test.

However, the other four judges pointed out that it is unconstitutional not to allow abortions even during the very early stage of pregnancy. They agreed it is desirable to criminalise abortions that is done after 24 weeks of gestation, when the fetus’ independent survival ability is recognised. However, the fetus is less likely to feel the pain in the early pregnancy, and the abortion in the period is not complicated and the risks that pregnant women might face due to abortion is significantly low, so the third criterion is breached by the abortion law. Furthermore, the public interests are hardly being achieved by the law as abortion is in practice prevalent. On the other hand, the right to self-determination of pregnant women outweighs the interests of the public. Thus, the fourth criteria is breached.

As the unconstitutionality was not supported by more than 6 judges in the Constitutional Court, it was declared that the abortion law is not contrary to the Constitution.

References
Statutes
Criminal Act available at https://elaw.klri.re.kr/kor_service/lawView.do?hseq=40950&lang=ENG
Mother and Child Health Act available at https://elaw.klri.re.kr/kor_service/lawView.do?hseq=40191&lang=ENG
Cases
헌재 2012. 8. 23. 2010헌바402, 공보 제191호, 1581 [합헌]